legal profession uniform conduct (barristers) rules 2015 · these rules are designated as legal...

New South Wales

Legal Profession Uniform Conduct (Barristers) Rules 2015under the

Legal Profession Uniform Law (NSW)

This version of the legislation is compiled and maintained in a database of legislation by the Parliamentary Counsel’s Office and publishedon the NSW legislation website.

Status information

Currency of version

Current version for 2 September 2016 to date (generated 7 September 2016 at 11:28). Legislation on the NSW legislation website is usually updated within 3 working days.

Provisions in force

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New South Wales

Legal Profession Uniform Conduct (Barristers) Rules 2015

Contents

Page

Introduction1 Citation 62 Commencement 63 Objects 64 Principles 65 Interpretation 76 Application of Rules 77 Other standards 7

Advocacy rules8 General 79 Another vocation 7

10 Use of professional qualification 711 Work of a barrister 712 813 814 915 916 917 Cab-rank principle 918 919 920 921 922 923 Duty to the court 1024 1025 1026 1027 1028 1029 1030 11

Current version for 2.9.2016 to date (generated on 7.9.2016 at 11:28)

Legal Profession Uniform Conduct (Barristers) Rules 2015 [NSW]Contents

Page

31 1132 1133 1134 1135 Duty to the client 1136 1137 1138 1139 Criminal pleas 1140 1241 1242 Independence 1243 1244 1245 1246 1247 1248 1249 Duty to the opponent 1350 1351 1352 1353 1354 1355 1356 1357 Efficient administration of justice 1358 1359 1460 Responsible use of court process and privilege 1461 1462 1463 1464 1465 1566 1567 1568 1569 Integrity of evidence 1570 1571 1572 1673 1674 1675 1676 Media comment 1677 1678 1779 Delinquent or guilty clients 1780 17



Page

81 1782 1883 Prosecutor’s duties 1884 1885 1886 1887 1888 1889 1890 1991 1992 1993 1994 1995 1996 Investigative tribunals 1997 1998 1999 20

100 20

Briefs101 Briefs which must be refused or must be returned 20102 21103 21104 21105 Briefs which may be refused or returned 22106 22107 22108 23109 23110 23111 23112 23113 Devilling 23114 Confidentiality & conflicts 23115 24116 24117 24118 24119 24120 24121 24122 24

Anti-discrimination and harassment123 25



Page

Definitions124 25125 25

Historical notesTable of amending instruments 28Table of amendments 28


Legal Profession Uniform Conduct (Barristers) Rules 2015

under the

Legal Profession Uniform Law (NSW)

Legal Profession Uniform Conduct (Barristers) Rules 2015 [NSW] Introduction

Introduction

1 Citation

These Rules are designated as Legal Profession Conduct Rules and may be cited asthe Legal Profession Uniform Conduct (Barristers) Rules 2015.

2 Commencement

These Rules come into operation on 1 July 2015.

3 Objects

The object of these Rules is to ensure that barristers:(a) act in accordance with the general principles of professional conduct,(b) act independently,(c) recognise and discharge their obligations in relation to the administration of

justice, and(d) provide services of the highest standard unaffected by personal interest.

4 Principles

These Rules are made in the belief that:(a) barristers owe their paramount duty to the administration of justice,(b) barristers must maintain high standards of professional conduct,(c) barristers as specialist advocates in the administration of justice, must act

honestly, fairly, skilfully, bravely and with competence and diligence,(d) barristers owe duties to the courts, to their clients and to their barrister and

solicitor colleagues,(e) barristers should exercise their forensic judgments and give their advice

independently and for the proper administration of justice, notwithstandingany contrary desires of their clients, and

(f) the provision of advocates for those who need legal representation is bettersecured if there is a Bar whose members:(i) must accept briefs to appear regardless of their personal beliefs,

(ii) must not refuse briefs to appear except on proper professional grounds,and

(iii) compete as specialist advocates with each other and with other legalpractitioners as widely and as often as practicable.

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Legal Profession Uniform Conduct (Barristers) Rules 2015 [NSW] Advocacy rules

5 Interpretation

The Interpretation of Legislation Act 1984 (Victoria) applies to the interpretation ofthese Rules.

6 Application of Rules

Except as otherwise provided these Rules apply to:(a) a barrister whose practising certificate is issued in a participating jurisdiction,

except to the extent that the conduct of the barrister in relation to practice in anon-participating jurisdiction is regulated by Barristers’ Rules for thatjurisdiction,

(b) a barrister whose practising certificate is issued in a non-participatingjurisdiction, in relation to practice in a participating jurisdiction, includingwork, wherever performed, in relation to such practice, and

(c) a barrister who is employed by the Crown or who holds a statutory officeexcept that he or she is exempt from rules 11–22 and 101–112 while actingpursuant to that employment or office.

7 Other standards

These Rules are not intended to be a complete or detailed code of conduct forbarristers. Other standards for, requirements of and sanctions on the conduct ofbarristers are found in the inherent disciplinary jurisdiction of the Supreme Court, thelegislation regulating the legal profession and in the general law (including the lawrelating to contempt of court).

Advocacy rules

8 General

A barrister must not engage in conduct which is:(a) dishonest or otherwise discreditable to a barrister,(b) prejudicial to the administration of justice, or(c) likely to diminish public confidence in the legal profession or the

administration of justice or otherwise bring the legal profession into disrepute.

9 Another vocation

A barrister must not engage in another vocation which:(a) is liable to adversely affect the reputation of the legal profession or the

barrister’s own reputation,(b) is likely to impair or conflict with the barrister’s duties to clients, or(c) prejudices a barrister’s ability to attend properly to the interests of the

barrister’s clients.

10 Use of professional qualification

A barrister must not use or permit the use of the professional qualification as abarrister for the advancement of any other occupation or activity in which he or sheis directly or indirectly engaged, or for private advantage, unless that use is usual orreasonable in the circumstances.

11 Work of a barrister

Barristers’ work consists of:

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(a) appearing as an advocate,(b) preparing to appear as an advocate,(c) negotiating for a client with an opponent to compromise a case,(d) representing a client in or conducting a mediation or arbitration or other

method of alternative dispute resolution,(e) giving legal advice,(f) preparing or advising on documents to be used by a client or by others in

relation to the client’s case or other affairs,(g) carrying out work properly incidental to the kinds of work referred to in

(a)–(f), and(h) such other work as is from time to time commonly carried out by barristers.

12 A barrister must be a sole practitioner, and must not:(a) practise in partnership with any person,(b) practise as the employer of any legal practitioner who acts as a legal

practitioner in the course of that employment,(c) practise as the employee of any person,(d) be a director of an incorporated legal practice, or(e) practise by or through an unincorporated legal practice.

13 A barrister must not, subject to rules 14 and 15:(a) act as a person’s general agent or attorney in that person’s business or dealings

with others,(b) conduct correspondence in the barrister’s name on behalf of any person

otherwise than with the opponent,(c) place herself or himself at risk of becoming a witness, by investigating facts

for the purposes of appearing as an advocate or giving legal advice, otherwisethan by:(i) conferring with the client, the instructing solicitor, prospective

witnesses or experts,(ii) examining documents provided by the instructing solicitor or the client,

as the case may be, or produced to the court,(iii) viewing a place or things by arrangement with the instructing solicitor

or the client, or(iv) library research,

(d) act as a person’s only representative in dealings with any court, otherwise thanwhen actually appearing as an advocate,

(e) be the address for service of any document or accept service of any document,(f) commence proceedings or file (other than file in court) or serve any process of

any court,(g) conduct the conveyance of any property for any other person,(h) administer any trust estate or fund for any other person,(i) obtain probate or letters of administration for any other person,(j) incorporate companies or provide shelf companies for any other person,(k) prepare or lodge returns for any other person, unless the barrister is registered

or accredited to do so under the applicable taxation legislation, or(l) hold, invest or disburse any funds for any other person.

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14 A barrister does not breach rule 13 by doing any of the matters referred to in that rule,without fee and as a private person not as a barrister or legal practitioner.

15 A barrister does not breach rule 13 (a), (h) or (l) if the barrister becomes such anagent, is appointed so to act or becomes responsible for such funds as a private personand not as a barrister or legal practitioner.

16 A barrister who is asked by any person to do work or engage in conduct which is notbarristers’ work, or which appears likely to require work to be done which is notbarristers’ work, must promptly inform that person:(a) of the effect of rules 11, 12, and 13 as they relevantly apply in the

circumstances, and(b) that, if it be the case, solicitors are capable of providing those services to that

person.

17 Cab-rank principle

A barrister must accept a brief from a solicitor to appear before a court in a field inwhich the barrister practises or professes to practise if:(a) the brief is within the barrister’s capacity, skill and experience,(b) the barrister would be available to work as a barrister when the brief would

require the barrister to appear or to prepare, and the barrister is not alreadycommitted to other professional or personal engagements which may, as a realpossibility, prevent the barrister from being able to advance a client’s intereststo the best of the barrister’s skill and diligence,

(c) the fee offered on the brief is acceptable to the barrister, and(d) the barrister is not obliged or permitted to refuse the brief under rule 101, 103,

104 or 105.

18 A barrister must not set the level of an acceptable fee, for the purposes of rule 17 (c),higher than the barrister would otherwise set if the barrister were willing to acceptthe brief, with the intent that the solicitor may be deterred from continuing to offerthe brief to the barrister.

19 A barrister must not require that any other particular legal practitioner be instructedor briefed so as in any way to impose that requirement as a condition of the barristeraccepting any brief or instructions.

20 A barrister must not make or have any arrangement with any person in connectionwith any aspect of the barrister’s practice which imposes any obligation on thebarrister of such a kind as may prevent the barrister from:(a) accepting any brief to appear for reasons other than those provided by the

exceptions to the cab-rank principle in rule 101, 103, 104 or 105, or(b) competing with any other legal practitioner for the work offered by any brief

for reasons other than those referred to in rule 101, 103, 104 or 105.

21 Nothing in these Rules shall be taken to oblige a barrister to accept instructionsdirectly from a person who is not a solicitor.

22 A barrister who proposes to accept instructions directly from a person who is not asolicitor or officer of a government department or agency whose usual duties includeengaging lawyers must:(a) inform the prospective client in writing of:

(i) the effect of rules 11 and 13,

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(ii) the fact that circumstances may require the client to retain an instructingsolicitor at short notice, and possibly during the performance of thework,

(iii) any other disadvantage which the barrister believes on reasonablegrounds may, as a real possibility, be suffered by the client if the clientdoes not retain an instructing solicitor,

(iv) the relative capacity of the barrister in performing barristers’ work tosupply the requested facilities or services to the client compared to thecapacity of the barrister together with an instructing solicitor to supplythem, and

(v) a fair description of the advocacy experience of the barrister, and(b) obtain a written acknowledgement, signed by the prospective client, that he or

she has been informed of the matters in (a) above.

23 Duty to the court

A barrister has an overriding duty to the court to act with independence in theinterests of the administration of justice.

24 A barrister must not deceive or knowingly or recklessly mislead the court.

25 A barrister must take all necessary steps to correct any misleading statement madeby the barrister to a court as soon as possible after the barrister becomes aware thatthe statement was misleading.

26 A barrister must alert the opponent and if necessary inform the court if any expressconcession made in the course of a trial in civil proceedings by the opponent aboutevidence, case-law or legislation is to the knowledge of the barrister contrary to thetrue position and is believed by the barrister to have been made by mistake.

27 A barrister seeking any interlocutory relief in an ex parte application must discloseto the court all factual or legal matters which:(a) are within the barrister’s knowledge,(b) are not protected by legal professional privilege, and(c) the barrister has reasonable grounds to believe would support an argument

against granting the relief or limiting its terms adversely to the client.

28 A barrister who has knowledge of matters which are within rule 27 (c):(a) must seek instructions for the waiver of legal professional privilege if the

matters are protected by that privilege so as to permit the barrister to disclosethose matters under rule 27, and

(b) if the client does not waive the privilege as sought by the barrister:(i) must inform the client of the client’s responsibility to authorise such

disclosure and the possible consequence of not doing so, and(ii) must refuse to appear on the application.

29 A barrister must, at the appropriate time in the hearing of the case if the court has notyet been informed of that matter, inform the court of:(a) any binding authority,(b) where there is no binding authority any authority decided by an Australian

appellate court, and(c) any applicable legislation,

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known to the barrister and which the barrister has reasonable grounds to believe tobe directly in point, against the client’s case.

30 A barrister need not inform the court of matters within rule 29 at a time when theopponent tells the court that the opponent’s whole case will be withdrawn or theopponent will consent to final judgment in favour of the client, unless the appropriatetime for the barrister to have informed the court of such matters in the ordinary coursehas already arrived or passed.

31 A barrister who becomes aware of a matter within rule 29 after judgment or decisionhas been reserved and while it remains pending, whether the authority or legislationcame into existence before or after argument, must inform the court of that matter by:(a) a letter to the court, copied to the opponent, and limited to the relevant

reference unless the opponent has consented beforehand to further material inthe letter, or

(b) requesting the court to relist the case for further argument on a convenientdate, after first notifying the opponent of the intended request and consultingthe opponent as to the convenient date for further argument.

32 A barrister need not inform the court of any matter otherwise within rule 29 whichwould have rendered admissible any evidence tendered by the prosecution which thecourt has ruled inadmissible without calling on the defence.

33 A barrister who knows or suspects that the prosecution is unaware of the client’sprevious conviction must not ask a prosecution witness whether there are previousconvictions, in the hope of a negative answer.

34 A barrister must inform the court of any apparent misapprehension by the court as tothe effect of an order which the court is making, as soon as the barrister becomesaware of the misapprehension.

35 Duty to the client

A barrister must promote and protect fearlessly and by all proper and lawful meansthe client’s best interests to the best of the barrister’s skill and diligence, and do sowithout regard to his or her own interest or to any consequences to the barrister or toany other person.

36 A barrister must inform the client or the instructing solicitor about the alternatives tofully contested adjudication of the case which are reasonably available to the client,unless the barrister believes on reasonable grounds that the client already has such anunderstanding of those alternatives as to permit the client to make decisions about theclient’s best interests in relation to the litigation.

37 A barrister must seek to assist the client to understand the issues in the case and theclient’s possible rights and obligations, sufficiently to permit the client to give properinstructions, including instructions in connection with any compromise of the case.

38 A barrister must (unless circumstances warrant otherwise in the barrister’sconsidered opinion) advise a client who is charged with a criminal offence about anylaw, procedure or practice which in substance holds out the prospect of someadvantage (including diminution of penalty), if the client pleads guilty or authorisesother steps towards reducing the issues, time, cost or distress involved in theproceedings.

39 Criminal pleas

It is the duty of a barrister representing a person charged with a criminal offence:

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(a) to advise the client generally about any plea to the charge, and(b) to make clear that the client has the responsibility for and complete freedom

of choosing the pleas to be entered.

40 For the purpose of fulfilling the duty in rule 39, a barrister may, in an appropriatecase, advise the client in strong terms that the client is unlikely to escape convictionand that a plea of guilty is generally regarded by the court as a mitigating factor tothe extent that the client is viewed by the court as co-operating in the criminal justiceprocess.

41 Where a barrister is informed that the client denies committing the offence chargedbut insists on pleading guilty to the charge, the barrister:(a) must advise the client to the effect that by pleading guilty, the client will be

admitting guilt to all the world in respect of all the elements of the charge,(b) must advise the client that matters submitted in mitigation after a plea of guilty

must be consistent with admitting guilt in respect of all of the elements of theoffence,

(c) must be satisfied that after receiving proper advice the client is making a freeand informed choice to plead guilty, and

(d) may otherwise continue to represent the client.

42 Independence

A barrister must not act as the mere mouthpiece of the client or of the instructingsolicitor and must exercise the forensic judgments called for during the caseindependently, after the appropriate consideration of the client’s and the instructingsolicitor’s wishes where practicable.

43 A barrister does not breach the barrister’s duty to the client, and will not have failedto give appropriate consideration to the client’s or the instructing solicitor’s wishes,simply by choosing, contrary to those wishes, to exercise the forensic judgmentscalled for during the case so as to:(a) confine any hearing to those issues which the barrister believes to be the real

issues,(b) present the client’s case as quickly and simply as may be consistent with its

robust advancement, or(c) inform the court of any persuasive authority against the client’s case.

44 A barrister must not make submissions or express views to a court on any materialevidence or issue in the case in terms which convey or appear to convey thebarrister’s personal opinion on the merits of that evidence or issue.

45 A barrister must not in the presence of any of the parties or solicitors deal with a courton terms of informal personal familiarity which may reasonably give the appearancethat the barrister has special favour with the court.

46 A barrister may not make a payment or gift to any person by reason of or inconnection with the introduction of professional work by that person to the barrister.

47 A barrister must not in any dealings with a client exercise any undue influenceintended to dispose the client to benefit the barrister in excess of the barrister’s fairremuneration for the legal services provided to the client.

48 A barrister must not receive any money or property by way of loan from any client,the relative of a client or a business entity of which a client is a director, partner or

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manager, during the course of a retainer with that client unless the ordinary businessof the client, client’s relative or the business entity includes lending money.

49 Duty to the opponent

A barrister must not knowingly make a false or misleading statement to an opponentin relation to the case (including its compromise).

50 A barrister must take all necessary steps to correct any false or misleading statementin relation to the case made by the barrister to an opponent as soon as possible afterthe barrister becomes aware that the statement was false or misleading.

51 A barrister does not make a false or misleading statement to an opponent simply byfailing to correct an error on any matter stated to the barrister by the opponent.

52 A barrister must not deal directly with a party other than his or her client who islegally represented unless:(a) the substance of the dealing is solely to enquire whether the person is

represented and, if so, by whom,(b) the legal practitioner representing the party has previously consented, or(c) the barrister believes on reasonable grounds that:

(i) the circumstances are so urgent as to require the barrister to do so, and(ii) the dealing would not be unfair to the party.

53 A barrister must not confer with or deal directly with any party who is unrepresentedunless the party has signified willingness to that course.

54 A barrister must not, outside an ex parte application or a hearing of which anopponent has had proper notice, communicate in the opponent’s absence with thecourt concerning any matter of substance in connection with current proceedingsunless:(a) the court has first communicated with the barrister in such a way as to require

the barrister to respond to the court, or(b) the opponent has consented beforehand to the barrister dealing with the court

in a specific manner notified to the opponent by the barrister.

55 A barrister must promptly tell an opponent what passes between the barrister and acourt in a communication referred to in rule 54.

56 A barrister must not raise any matter with a court in connection with currentproceedings on any occasion to which an opponent has consented under rule 54 (b),other than the matters specifically notified by the barrister to the opponent whenseeking the consent of the opponent.

57 Efficient administration of justice

A barrister:(a) must seek to ensure that the barrister does work which the barrister is briefed

to do in sufficient time to enable compliance with orders, directions, rules orpractice notes of the court, and

(b) if the barrister has reasonable grounds to believe that the barrister may notcomplete any such work on time, must promptly inform the instructingsolicitor or the client.

58 A barrister must seek to ensure that work which the barrister is briefed to do inrelation to a case is done so as to:

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(a) confine the case to identified issues which are genuinely in dispute,(b) have the case ready to be heard as soon as practicable,(c) present the identified issues in dispute clearly and succinctly,(d) limit evidence, including cross-examination, to that which is reasonably

necessary to advance and protect the client’s interests which are at stake in thecase, and

(e) occupy as short a time in court as is reasonably necessary to advance andprotect the client’s interests which are at stake in the case.

59 A barrister must take steps to inform the opponent as soon as possible after thebarrister has reasonable grounds to believe that there will be an application on behalfof the client to adjourn any hearing, of that fact and the grounds of the application,and must try, with the opponent’s consent, to inform the court of that applicationpromptly.

60 Responsible use of court process and privilege

A barrister must take care to ensure that the barrister’s advice to invoke the coercivepowers of a court:(a) is reasonably justified by the material then available to the barrister,(b) is appropriate for the robust advancement of the client’s case on its merits,(c) is not given principally in order to harass or embarrass a person, and(d) is not given principally in order to gain some collateral advantage for the client

or the barrister or the instructing solicitor or a third party out of court.

61 A barrister must take care to ensure that decisions by the barrister to make allegationsor suggestions under privilege against any person:(a) are reasonably justified by the material then available to the barrister,(b) are appropriate for the robust advancement of the client’s case on its merits,

and(c) are not made principally in order to harass or embarrass a person.

62 Without limiting the generality of rule 61, in proceedings in which an allegation ofsexual assault, indecent assault or the commission of an act of indecency is made andin which the alleged victim gives evidence:(a) a barrister must not ask that witness a question or pursue a line of questioning

of that witness which is intended:(i) to mislead or confuse the witness, or

(ii) to be unduly annoying, harassing, intimidating, offensive, oppressive,humiliating or repetitive, and

(b) a barrister must take into account any particular vulnerability of the witness inthe manner and tone of the questions that the barrister asks.

63 A barrister does not infringe rule 62 merely because:(a) the question or questioning challenges the truthfulness of the witness or the

consistency or accuracy of any statements made by the witness, or(b) the question or questioning requires the witness to give evidence that the

witness could consider to be offensive, distasteful or private.

64 A barrister must not allege any matter of fact in:(a) any court document settled by the barrister,

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(b) any submission during any hearing,(c) the course of an opening address, or(d) the course of a closing address or submission on the evidence,unless the barrister believes on reasonable grounds that the factual material alreadyavailable provides a proper basis to do so.

65 A barrister must not allege any matter of fact amounting to criminality, fraud or otherserious misconduct against any person unless the barrister believes on reasonablegrounds that:(a) available material by which the allegation could be supported provides a

proper basis for it, and(b) the client wishes the allegation to be made, after having been advised of the

seriousness of the allegation and of the possible consequences for the clientand the case if it is not made out.

66 A barrister may regard the opinion of the instructing solicitor that material which isavailable to the solicitor is credible, being material which appears to the barristerfrom its nature to support an allegation to which rules 64 and 65 apply, as areasonable ground for holding the belief required by those rules (except in the caseof a closing address or submission on the evidence).

67 A barrister must not make a suggestion in cross-examination on credit unless thebarrister believes on reasonable grounds that acceptance of the suggestion woulddiminish the credibility of the evidence of the witness.

68 A barrister who has instructions which justify submissions for the client in mitigationof the client’s criminality which involve allegations of serious misconduct againstany other person not able to answer the allegations in the case must seek to avoiddisclosing the other person’s identity directly or indirectly unless the barristerbelieves on reasonable grounds that the disclosure is necessary for the proper conductof the client’s case.

69 Integrity of evidence

A barrister must not:(a) advise or suggest to a witness that false or misleading evidence should be

given nor condone another person doing so, or(b) coach a witness by advising what answers the witness should give to questions

which might be asked.

70 A barrister does not breach rule 69 by expressing a general admonition to tell thetruth, or by questioning and testing in conference the version of evidence to be givenby a prospective witness, including drawing the witness’s attention to inconsistenciesor other difficulties with the evidence, but must not encourage the witness to giveevidence different from the evidence which the witness believes to be true.

71 A barrister must not confer with, or condone another legal practitioner conferringwith, more than one lay witness including a party or client at the same time:(a) about any issue which there are reasonable grounds for the barrister to believe

may be contentious at a hearing, and(b) where such conferral could affect evidence to be given by any of those

witnesses,unless the barrister believes on reasonable grounds that special circumstances requiresuch a conference.

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72 A barrister does not breach rule 71 by conferring with, or condoning another legalpractitioner conferring with, more than one client about undertakings to a court,admissions or concessions of fact, amendments of pleadings or compromise.

73 A barrister must not confer with any witness including a party or client called by thebarrister on any matter related to the proceedings while that witness remains undercross-examination, unless:(a) the cross-examiner has consented beforehand to the barrister doing so, or(b) the barrister:

(i) believes on reasonable grounds that special circumstances (includingthe need for instructions on a proposed compromise) require such aconference,

(ii) has, if possible, informed the cross-examiner beforehand of thebarrister’s intention to do so, and

(iii) otherwise does inform the cross-examiner as soon as possible of thebarrister having done so.

74 A barrister must not take any step to prevent or discourage prospective witnessesfrom conferring with an opponent or being interviewed by or on behalf of any otherperson involved in the proceedings.

75 A barrister does not breach rule 74 simply by telling a prospective witness or awitness that he or she need not agree to confer or to be interviewed or by advisingabout relevant obligations of confidentiality.

76 Media comment

A barrister must not publish or take any step towards the publication of any materialconcerning any proceeding which:(a) is known to the barrister to be inaccurate,(b) discloses any confidential information, or(c) appears to or does express the opinion of the barrister on the merits of a current

or potential proceeding or on any issue arising in such a proceeding, other thanin the course of genuine educational or academic discussion on matters of law.

77 A barrister must not publish or take any step towards the publication of any materialconcerning any current proceeding in which the barrister is appearing or anypotential proceeding in which a barrister is likely to appear, other than:(a) a barrister may supply answers to unsolicited questions concerning a current

proceeding provided that the answers are limited to information as to theidentity of the parties or of any witness already called, the nature of the issuesin the case, the nature of the orders made or judgment given including anyreasons given by the court and the client’s intentions as to any further steps inthe case, or

(b) a barrister may, where it is not contrary to legislation or court practice and atthe request of the client or instructing solicitor or in response to unsolicitedquestions supply for publication:(i) copies of pleadings in their current form which have been filed and

served in accordance with the court’s requirements,(ii) copies of affidavits or witness statements, which have been read,

tendered or verified in open court, clearly marked so as to show anyparts which have not been read, tendered or verified or which have beendisallowed on objection,

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(iii) copies of transcript of evidence given in open court, if permitted bycopyright and clearly marked so as to show any corrections agreed bythe other parties or directed by the court, or

(iv) copies of exhibits admitted in open court and without restriction onaccess.

78 A barrister:(a) may if requested advise a client about dealings with the media but not in a

manner which is calculated to interfere with the proper administration ofjustice, and

(b) does not breach rule 76 or 77 simply by advising the client about whom therehas been published a report relating to the case, and who has sought thebarrister’s advice in relation to that report, that the client may take appropriatesteps to present the client’s own position for publication.

79 Delinquent or guilty clients

A barrister who, as a result of information provided by the client or a witness calledon behalf of the client, is informed by the client or by the witness during a hearing orafter judgment or decision is reserved and while it remains pending, that the client ora witness called on behalf of the client:(a) has lied in a material particular to the court or has procured another person to

lie to the court,(b) has falsified or procured another person to falsify in any way a document

which has been tendered, or(c) has suppressed or procured another person to suppress material evidence upon

a topic where there was a positive duty to make disclosure to the court,must refuse to take any further part in the case unless the client authorises thebarrister to inform the court of the lie, falsification or suppression and must promptlyinform the court of the lie, falsification or suppression upon the client authorising thebarrister to do so but otherwise must not inform the court of the lie, falsification orsuppression.

80 A barrister briefed to appear in criminal proceedings whose client confesses guilt tothe barrister but maintains a plea of not guilty:(a) should, subject to the client accepting the constraints set out in (b)–(h) but not

otherwise, continue to act in the client’s defence,(b) must not falsely suggest that some other person committed the offence

charged,(c) must not set up an affirmative case inconsistent with the confession,(d) must ensure that the prosecution is put to proof of its case,(e) may argue that the evidence as a whole does not prove that the client is guilty

of the offence charged,(f) may argue that for some reason of law the client is not guilty of the offence

charged,(g) may argue that for any other reason not prohibited by (b) or (c) the client

should not be convicted of the offence charged, and(h) must not continue to act if the client insists on giving evidence denying guilt

or requires the making of a statement asserting the client’s innocence.

81 A barrister whose client informs the barrister that the client intends to disobey acourt’s order:

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(a) must advise the client against that course and warn the client of its dangers,and

(b) must not advise the client how to carry out or conceal that course, but(c) must not inform the court or the opponent of the client’s intention unless:

(i) the client has authorised the barrister to do so beforehand, or(ii) the barrister believes on reasonable grounds that the client’s conduct

constitutes a threat to any person’s safety.

82 A barrister whose client threatens the safety of any person may, notwithstanding rule114, if the barrister believes on reasonable grounds that there is a risk to any person’ssafety, advise the police or other appropriate authorities.

83 Prosecutor’s duties

A prosecutor must fairly assist the court to arrive at the truth, must seek impartiallyto have the whole of the relevant evidence placed intelligibly before the court, andmust seek to assist the court with adequate submissions of law to enable the lawproperly to be applied to the facts.

84 A prosecutor must not press the prosecution’s case for a conviction beyond a full andfirm presentation of that case.

85 A prosecutor must not, by language or other conduct, seek to inflame or bias the courtagainst the accused.

86 A prosecutor must not argue any proposition of fact or law which the prosecutor doesnot believe on reasonable grounds to be capable of contributing to a finding of guiltand also to carry weight.

87 A prosecutor must disclose to the opponent as soon as practicable all material(including the names of and means of finding prospective witnesses in connectionwith such material) available to the prosecutor or of which the prosecutor becomesaware which could constitute evidence relevant to the guilt or innocence of theaccused other than material subject to statutory immunity, unless the prosecutorbelieves on reasonable grounds that such disclosure, or full disclosure, wouldseriously threaten the integrity of the administration of justice in those proceedingsor the safety of any person.

88 A prosecutor who has decided not to disclose material to the opponent under rule 87must consider whether:(a) the charge against the accused to which the material is relevant should be

withdrawn, and(b) the accused should be faced only with a lesser charge to which such material

would not be so relevant.

89 A prosecutor must call as part of the prosecution’s case all witnesses:(a) whose testimony is admissible and necessary for the presentation of all of the

relevant circumstances, or(b) whose testimony provides reasonable grounds for the prosecutor to believe

that it could provide admissible evidence relevant to any matter in issue,unless:(i) the opponent consents to the prosecutor not calling a particular witness,

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(ii) the only matter with respect to which the particular witness can giveadmissible evidence has been dealt with by an admission on behalf of theaccused,

(iii) the only matter with respect to which the particular witness can giveadmissible evidence goes to establishing a particular point already adequatelyestablished by another witness or other witnesses,

(iv) the prosecutor believes on reasonable grounds that the testimony of aparticular witness is plainly untruthful or is plainly unreliable, or

(v) the prosecutor, having the responsibility of ensuring that the prosecution caseis presented properly and presented with fairness to the accused, believes onreasonable grounds that the interests of justice would be harmed if the witnesswas called as part of the prosecution case.

90 The prosecutor must inform the opponent as soon as practicable of the identity of anywitness whom the prosecutor intends not to call on any ground within rule 89 (ii),(iii), (iv) or (v), together with the grounds on which the prosecutor has reached thatdecision, unless the interests of justice would be harmed if those grounds wererevealed to the opponent.

91 A prosecutor who has reasonable grounds to believe that certain material available tothe prosecution may have been unlawfully obtained must promptly:(a) inform the opponent if the prosecutor intends to use the material, and(b) make available to the opponent a copy of the material if it is in documentary

form.

92 A prosecutor must not confer with or interview any accused except in the presenceof the accused’s legal representative.

93 A prosecutor must not inform the court or opponent that the prosecution has evidencesupporting an aspect of its case unless the prosecutor believes on reasonable groundsthat the evidence will be available from material already available to the prosecutor.

94 A prosecutor who has informed the court of matters within rule 93, and who has laterlearnt that the evidence will not be available, must immediately inform the opponentof that fact and must inform the court of it when next the case is before the court.

95 A prosecutor:(a) must correct any error made by the opponent in address on sentence,(b) must inform the court of any relevant authority or legislation bearing on the

appropriate sentence,(c) must assist the court to avoid appealable error on the issue of sentence, and(d) may submit that a custodial or non-custodial sentence is appropriate.

96 Investigative tribunals

Rules 77 and 83–95 do not apply to a barrister who appears as counsel assisting aninvestigative tribunal.

97 A barrister who appears as counsel assisting an investigative/inquisitorial tribunalmust fairly assist the tribunal to arrive at the truth and must seek to assist the tribunalwith adequate submissions of law and fact.

98 A barrister who appears as counsel assisting an investigative/inquisitorial tribunalmust not, by language or other conduct, seek to inflame or bias the tribunal againstany person appearing before the tribunal.

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Legal Profession Uniform Conduct (Barristers) Rules 2015 [NSW] Briefs

99 A barrister who appears as counsel assisting an investigative/inquisitorial tribunalmust not argue any proposition of fact or law which the barrister does not believe onreasonable grounds to be capable of contributing to a finding on the balance ofprobabilities.

100 A barrister who appears as counsel assisting an investigative tribunal must notpublish or take any step towards the publication of any material concerning anycurrent proceeding in which the barrister is appearing or any potential proceeding inwhich a barrister is likely to appear, other than:(a) a barrister may supply answers to unsolicited questions concerning a current

proceeding provided that the answers are limited to information as to theidentity of any witness already called, the nature of the issues in theproceeding, the nature of any orders, findings, recommendations or decisionsmade including any reasons given by the investigative tribunal, or

(b) a barrister may, where it is not contrary to legislation, in response tounsolicited questions supply for publication:(i) copies of affidavits or witness statements, which have been read,

tendered or verified in proceedings open to the public, clearly markedso as to show any parts which have not been read, tendered or verifiedor which have been disallowed on objection,

(ii) copies of transcript of evidence given in proceedings open to the public,if permitted by copyright and clearly marked so as to show anycorrections agreed by the witness or directed by the investigativetribunal, or

(iii) copies of exhibits admitted in proceedings open to the public andwithout restriction on access.

Briefs

101 Briefs which must be refused or must be returned

A barrister must refuse to accept or retain a brief or instructions to appear before acourt if:(a) the barrister has information which is confidential to any other person in the

case other than the prospective client, and:(i) the information may, as a real possibility, be material to the prospective

client’s case, and(ii) the person entitled to the confidentiality has not consented to the

barrister using the information as the barrister thinks fit in the case,(b) the client’s interest in the matter or otherwise is or would be in conflict with

the barrister’s own interest or the interest of an associate,(c) the barrister has a general or special retainer which gives, and gives only, a

right of first refusal of the barrister’s services to another party in the case andthe barrister is offered a brief to appear in the case for the other party withinthe terms of the retainer,

(d) the barrister has reasonable grounds to believe that the barrister may, as a realpossibility, be a witness in the case,

(e) the brief is to appear on an appeal and the barrister was a witness in the caseat first instance,

(f) the barrister has reasonable grounds to believe that the barrister’s ownpersonal or professional conduct may be attacked in the case,

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(g) the barrister has a material financial or property interest in the outcome of thecase, apart from the prospect of a fee,

(h) the brief is on the assessment of costs which include a dispute as to thepropriety of the fee paid or payable to the barrister, or is for the recovery froma former client of costs in relation to a case in which the barrister appeared forthe client,

(i) the brief is for a party to an arbitration in connection with the arbitration andthe barrister has previously advised or appeared for the arbitrator in connectionwith the arbitration,

(j) the brief is to appear in a contested or ex parte hearing before the barrister’sparent, sibling, spouse or child or a member of the barrister’s household, orbefore a bench of which such a person is a member, unless the hearing isbefore the High Court of Australia sitting all available judges,

(k) there are reasonable grounds for the barrister to believe that the failure of theclient to retain an instructing solicitor would, as a real possibility, seriouslyprejudice the barrister’s ability to advance and protect the client’s interests inaccordance with the law including these Rules,

(l) the barrister has already advised or drawn pleadings for another party to thematter,

(m) the barrister has already discussed in any detail (even on an informal basis)with another party with an adverse interest in the matter the facts out of whichthe matter arises, or

(n) the brief is to appear before a court of which the barrister was formerly amember or judicial registrar, or before a court from which appeals lay to acourt of which the barrister was formerly a member (except the Federal Courtof Australia in case of appeals from the Supreme Court of any State orTerritory), and the appearance would occur within 5 years after the barristerceased to be a member of the court in question where the barrister ceased to bea judge or judicial registrar after the commencement date of this rule.

102 A barrister need not refuse or return a brief, notwithstanding the application of rule101 (f) if the barrister believes on reasonable grounds that:(a) allegations involving the barrister in such a way as to apply one of those rules

have been raised in order to prevent the barrister from accepting the brief, and(b) those allegations can be met without materially diminishing the barrister’s

disinterestedness.

103 A barrister must refuse a brief to advise if the barrister has information which isconfidential to any person with different interests from those of the prospective clientif:(a) the information may, as a real possibility, affect the prospective client’s

interests in the matter on which advice is sought or may be detrimental to theinterests of the first person, and

(b) the person entitled to the confidentiality has not consented beforehand to thebarrister using the information as the barrister thinks fit in giving advice.

104 A barrister must not accept a brief to appear on a day when the barrister is alreadycommitted to appear or is reasonably likely to be required to appear on another briefif by appearing on one of the briefs the barrister would not in the normal course ofevents be able to appear on the other brief or briefs.

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105 Briefs which may be refused or returned

A barrister may refuse or return a brief to appear before a court:(a) if the brief is not offered by a solicitor,(b) if the barrister considers on reasonable grounds that the time or effort required

for the brief threatens to prejudice the barrister’s practice or other professionalor personal engagements,

(c) if the instructing solicitor does not agree to be responsible for the payment ofthe barrister’s fee,

(d) if the barrister has reasonable grounds to doubt that the fee will be paidreasonably promptly or in accordance with the costs agreement,

(e) if the brief may, as a real possibility, require the barrister to cross-examine orcriticise a friend or relative,

(f) if the solicitor does not comply with a request by the barrister for appropriateattendances by the instructing solicitor, solicitor’s clerk or clientrepresentative for the purposes of:(i) ensuring that the barrister is provided with adequate instructions to

permit the barrister properly to carry out the work or appearancerequired by the brief,

(ii) ensuring that the client adequately understands the barrister’s advice,(iii) avoiding any delay in the conduct of any hearing, and(iv) protecting the client or the barrister from any disadvantage or

inconvenience which may, as a real possibility, otherwise be caused,(g) if the barrister’s advice as to the preparation or conduct of the case, not

including its compromise, has been rejected or ignored by the instructingsolicitor or the client, as the case may be,

(h) if the prospective client is also the prospective instructing solicitor, or apartner, employer or employee of the prospective instructing solicitor, and hasrefused the barrister’s request to be instructed by a solicitor independent of theprospective client and the prospective client’s firm,

(i) if the barrister, being a Senior Counsel, considers on reasonable grounds thatthe brief does not require the services of a Senior Counsel,

(j) if the barrister, being a Senior Counsel, considers on reasonable grounds thatthe brief also requires the services of a junior counsel and none has beenbriefed,

(k) where there is a personal or business relationship between the barrister and theclient or another party, a witness, or another legal practitioner representing aparty,

(l) where the brief is to appear before a judge whose personal or businessrelationship with the barrister is such as to give rise to the apprehension thatthere may not be a fair hearing, or

(m) in accordance with the terms of a costs agreement which provide for return ofa brief.

106 A barrister may return a brief accepted under a conditional costs agreement if thebarrister considers on reasonable grounds that the client has unreasonably rejected areasonable offer to compromise contrary to the barrister’s advice.

107 A barrister must not return under rule 105 a brief to defend a charge of a seriouscriminal offence unless:(a) the barrister believes on reasonable grounds that:

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(i) the circumstances are exceptional and compelling, and(ii) there is enough time for another legal practitioner to take over the case

properly before the hearing, or(b) the client has consented after the barrister has clearly informed the client of the

circumstances in which the barrister wishes to return the brief and of the termsof this rule.

108 A barrister must not return a brief to appear in order to accept another brief to appearunless the instructing solicitor or the client in the first brief has permitted the barristerto do so beforehand, after the barrister has clearly informed the instructing solicitoror the client of the circumstances in which the barrister wishes to return the brief andof the terms of this rule and rule 110.

109 A barrister must not return a brief to appear on a particular date in order to attend asocial occasion unless the instructing solicitor or the client has expressly permittedthe barrister to do so.

110 A barrister who wishes to return a brief which the barrister is permitted to return mustdo so in enough time to give another legal practitioner a proper opportunity to takeover the case.

111 A barrister must promptly inform the instructing solicitor or the client as soon as thebarrister has reasonable grounds to believe that there is a real possibility that thebarrister will be unable to appear or to do the work required by the brief in the timestipulated by the brief or within a reasonable time if no time has been stipulated.

112 A barrister must not hand over a brief to another barrister to conduct the case, or anycourt appearance within the case, unless the instructing solicitor has consented to thatcourse.

113 Devilling

A barrister does not breach rule 12 by carrying out a specific task of research orchamber work given to the barrister by another barrister, or by giving such a task toanother barrister, so long as:(a) the barrister who was briefed to do the work takes full personal responsibility

for the work,(b) the work is delivered under the name of the barrister who was briefed,(c) the arrangement between the barristers does not go beyond an ordinary

devilling or reading arrangement and in particular does not involve anystanding retainer or employment terms, and

(d) the arrangement between the barristers does not provide and is not intended toenable the barrister giving the task to make a profit from the other barrister’swork, over and above reasonable remuneration for supervision of andresponsibility for the other barrister’s work.

114 Confidentiality & conflicts

A barrister must not disclose (except as compelled by law) or use in any wayconfidential information obtained by the barrister in the course of practiceconcerning any person to whom the barrister owes some duty or obligation to keepthe information confidential unless or until:(a) the information is later obtained by the barrister from another person who is

not bound by the confidentiality owed by the barrister to the first person andwho does not give the information confidentially to the barrister, or

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(b) the person has consented to the barrister disclosing or using the informationgenerally or on specific terms.

115 A barrister must not disclose (except as compelled by law) or use confidentialinformation under rule 114 (b) in any way other than as permitted by the specificterms of the person’s consent.

116 A barrister does not breach rules 114 and 115 simply by showing briefs to ordisclosing information contained in a brief to the barrister’s instructing solicitor inthe matter, to a member of the barrister’s staff for the purposes of that personundertaking clerical or administrative work in relation to the matter, or to a reader orto another barrister doing work as permitted by rule 113.

117 A barrister who is shown a brief as a reader or under an arrangement covered by rule113 is bound by the same duties of confidentiality which bind the barrister whosebrief it is, including the duties imposed by rules 114 and 115.

118 A barrister must return a brief other than a brief to appear as soon as possible afterthe barrister becomes aware that the barrister has information confidential to a personother than the client which may, as a real possibility, be material to the client’s caseor to the advancement of the client’s interests, being information which the barristeris prohibited from disclosing or using unless the person entitled to the confidentialityconsents to the barrister disclosing or using the information as the barrister thinks fit.

119 A barrister who is briefed to appear for two or more parties in any case mustdetermine as soon as possible whether the interests of the clients may, as a realpossibility, conflict and, if so, the barrister must then return the brief for:(a) all the clients in the case of confidentiality to which rule 114 would apply, or(b) one or more of the clients so as to remove that possibility of conflict.

120 A barrister who believes on reasonable grounds that the interests of the client mayconflict with the interests of the instructing solicitor, or that the client may have aclaim against the instructing solicitor, must:(a) advise the instructing solicitor of the barrister’s belief, and(b) if the instructing solicitor does not agree to advise the client of the barrister’s

belief, seek to advise the client in the presence of the instructing solicitor ofthe barrister’s belief.

121 A barrister must not give an undertaking to the court on behalf of a solicitor or a clientwithout express authority of the person concerned.

122 A barrister must not disclose to the court, whether in submissions, examination,cross-examination or otherwise, any communication between the barrister and legalrepresentatives appearing in the proceedings for any other party to the proceedings:(a) except by consent,(b) unless what occurred resulted in the creation of some contractual or other legal

relationship,(c) unless it was expressly stated before or at the commencement of such

communication that matters communicated should not be regarded as withoutprejudice or privileged from use or disclosure, or

(d) unless disclosure is required by the court.

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Legal Profession Uniform Conduct (Barristers) Rules 2015 [NSW] Anti-discrimination and harassment

Anti-discrimination and harassment

123 A barrister must not in the course of practice, engage in conduct which constitutes:(a) discrimination,(b) sexual harassment, or(c) workplace bullying.

Definitions

124 Expressions used in these Rules which are also used in the Legal Profession UniformLaw have the same meanings as they have in that Law, unless the context requiresotherwise.

125 Unless the context requires otherwise, the following expressions are defined asfollows when used in these Rules:

allege includes conduct constituted by settling or opening on pleadings, affidavits or witness statements, and reading or tendering affidavits or witness statements filed or prepared for the client (whether or not they were drawn or settled by the barrister).

associate means a corporation, partnership or trust in which the barrister has a material beneficial interest or a member of the barrister’s immediate family.

barristers’ work means work permitted by rule 11.

case means the litigation or proceedings in which the barrister in question is briefed to appear, or the dispute in which the barrister is advising, as the case may be.

client means the client of the barrister in question, and for the purposes of rules 71, 79 and 81 includes those officers, servants or agents of a client which is not a natural person who are responsible for or involved in giving instructions on behalf of the client.

court means any body described as such and all other judicial tribunals, and all statutory tribunals and all investigations and inquiries (established by statute or by a Parliament), Royal Commissions [the Criminal Justice Commission/ICAC or equivalent], arbitrations and mediations.

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Legal Profession Uniform Conduct (Barristers) Rules 2015 [NSW] Definitions

criminal proceedings includes disciplinary proceedings, in which context other expressions appropriate to criminal proceedings include corresponding meanings appropriate to disciplinary proceedings and in particular “a serious criminal offence” includes a disciplinary shortcoming which, if proved, involves the serious possibility of suspension or deregistration (or the equivalent).

current proceedings means proceedings which have not been determined, including proceedings in which there is still a real possibility of an appeal or other challenge to a decision being filed, heard or decided.

devilling the activity of undertaking chamber work in connection with briefs held by another barrister.

discrimination means discrimination as defined under the applicable state, territory or federal anti-discrimination or human rights legislation and includes all forms of unlawful discrimination.

ex parte application means an application heard in the absence of a party.

fee includes any payment for the reimbursement of expenses.

genuine educational or academic discussion

means oral or written communications including the publication of notes and articles with members of the legal profession, other profession or group or members thereof which are in good faith for an educational or academic purpose.

instructing solicitor means the solicitor from whom the barrister in question has accepted a brief or who is instructing that barrister in that brief, as the case may be, but does not include a solicitor appearing with the barrister as a joint advocate; and includes a patent attorney.

investigative tribunal means a body such as the Criminal Justice Commission, the Australian Crime Commission, the Australian Securities and Investments Commission, the ACCC, a Royal Commission or Special Commission of Inquiry or other statutory tribunal or body having investigative powers.

legal advice includes assistance at or presiding over meetings.

legislation includes delegated legislation.

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Legal Profession Uniform Conduct (Barristers) Rules 2015 [NSW] Definitions

opponent means the legal practitioner appearing for the party opposed to the client, or the party opposed to the client if that party is unrepresented, and any other legal practitioner appearing for another party in the matter or any other party if that party is unrepresented.

order includes a judgement, decision or determination.

potential proceeding means proceedings which have not been commenced but where there is information which has been publicised that such process is imminent or where there is a very real likelihood that process will be instigated.

proceedings includes any inquiry, investigation or hearing by or before an investigative tribunal.

process of court means any originating process, pleading, affidavit or notice filed in court and any document issued by the court but does not include submissions or lists of authorities.

prosecutor means a barrister who appears for the complainant or Crown in criminal proceedings.

reader means a barrister undertaking a reading program.

Senior Counsel means Queen’s Counsel and Senior Counsel appointed as such in accordance with the protocol for the appointment of Queen’s Counsel or Senior Counsel duly adopted in each jurisdiction.

sexual harassment means sexual harassment as defined under the applicable state, territory or federal anti-discrimination or human rights legislation.

workplace bullying means unreasonable behaviour that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person working in a workplace.

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The following abbreviations are used in the Historical notes:Am amended LW legislation website Sch ScheduleCl clause No number Schs SchedulesCll clauses p page Sec sectionDiv Division pp pages Secs sectionsDivs Divisions Reg Regulation Subdiv SubdivisionGG Government Gazette Regs Regulations Subdivs SubdivisionsIns inserted Rep repealed Subst substituted

Legal Profession Uniform Conduct (Barristers) Rules 2015 [NSW]Historical Notes

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Historical notes

Table of amending instrumentsLegal Profession Uniform Conduct (Barristers) Rules 2015 (243). LW 27.5.2015. Date of commencement,1.7.2015, rule 2. These Rules have been amended as follows:

Table of amendments

2016 (570) Legal Profession Uniform Conduct (Barristers) Amendment (Work of a Barrister) Rule 2016. LW 2.9.2016.Date of commencement, on publication on LW, cl 2.

Rule 11 Am 2016 (570), cl 4.

legal profession uniform conduct (barristers) rules 2015 · these rules are designated as legal...

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